Issue III

Issue III: Whether the Vanaspati deserves standalone protection as living creatures
in contrast to the development agenda of Aryaland?

1. The counsel on behalf of Mahapradesh Metro Corporation Limited (MMCL)

contends that Vanaspati forest does not deserve standalone protection as living
creatures, that if the same is granted it will be predominantly arbitrary as it will
restrict economic prosperity in the state. It is further contended that an attribution
of personhood or legal personality is done through the creation of a legal fiction,
whereby even inanimate objects such as idols, ships, corporations etc., are deemed
to be the bearers of rights and duties. However, jurisprudential literature still
associates personhood with humanity or human-like traits such as a living entity.

A. Fallacious grant of personhood

2. It is humbly submitted that the Ganges and Yamuna Rivers are now considered
legal persons in an effort to combat pollution. The High Court in the northern
Indian state of Uttarakhand ordered in March 20171 that the Ganges and its main
tributary, the Yamuna, be assigned the status of legal entities. It is further
submitted that this development of environmental personhood has been met with
scepticism as merely announcing that the Ganges and Yamuna are living entities
will not save them from significant, ongoing pollution. The mere recognition of
the river as legal entity will not do away with its protection. There is a possible
need to change long-held cultural attitudes towards the Ganges, which hold that
the river has self-purifying properties.2
3. The counsel humbly submits that MMCL is a joint venture between the
Government of Aryaland and the Government of Mahapradesh. The constitutional
amendment of Constitution of India empowers the Union Government to
administer forests along with the State Governments. 3 The counsel in defence of
the plea given by petitioners humbly submits that nature cannot possibly recognise
the rights of others as Salmond rightly quoted that a person could be defined as
any being to whom the law attributes a capability to have interests, and therefore,
1
https://indiankanoon.org/doc/92201770/
2
http://www.unep.org/stories/story/rights-rivers/
3
"The Concurrent Subject List". Vakilbabu.com. Retrieved 2013-03-25. This article incorporates
text from this source, which is in the public domain
 making them capable of rights, acts and duties4. It is submitted that in the eyes of
law, if nature is a legal person bearing rights5 as well as corresponding duties
towards others, it means that nature cannot only sue but also be sued in a court of
law which questions the practical feasibility of the same.
4. Further, it is submitted that in the present case of Vanaspati forest, MMCL seek
economic growth and development in the region and there is no endangerment to
the spirituality of people of Vanshaj community. Therefore, the counsel contends
that mere protection given to Vanaspati forest as living creatures will not
legitimize the plead of petitioners as no right has been violated and thereby the
need for the same doesn't arise.

B. The question of guardianship and representation

5. It is humbly submitted that Mahapradesh Metro is a joint venture between the

Mahapradesh State Government and the Government of Aryaland, who are
constitutionally empowered corroborating with the provisions of Forest
Conservation Act 19806, which evidently haven’t yet given forests standalone
status of juristic person. It is submitted that giving 'natural objects' rights
necessarily means that a legal guardian needs to be appointed to speak on behalf
of these natural objects and enforce these rights. In India, the guardians of the
river as appointed by the Court are the Director of the Namami Gange
Programme, the Chief Secretary and the Advocate General of Uttarakhand.

4
https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://www.google.com/
&httpsredir=1&article=3259&context=ylj
5
"Where it is more than simply a synonym for 'human being', 'person' figures primarily in moral and
legal discourse. A person is a being with a certain moral status, or a bearer of rights. But underlying
the moral status, as its condition, are certain capacities. A person is a being who has a sense of self,
has a notion of the future and the past, can hold values, make choices; in short, can adopt life-plans.
At least, a person must be the kind of being who is in principle capable of all this, however damaged
these capacities may be in practice." Charles Taylor, "The Concept of a Person", Philosophical
Papers. Volume 1. Cambridge: Cambridge University Press, 1985, 97.
6
Section 4- Power to make rules : 1) The Central Government may, by notification in the Official Gazette, make
rules for carrying out the provisions of this Act. 2) Every rule made under this Act shall be laid, as soon as may
be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days
which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the
session immediately following the session or the successive sessions aforesaid, both Houses agree in making
any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter
have effect only in such modified form or be of no effect, as the case may be; so, however, that any such
modification or annulment shall be without prejudice to the validity of anything previously done under that
rule.
This appointment of the Advocate General, as the representative of the river in all legal
proceedings is inherently problematic. The Advocate General of the State is appointed by
the Government and he/she is the chief legal advisor to the Government. The Advocate
General holds office during the pleasure of the Governor, and recent trends show that the
appointment of the Advocate General involves political considerations. As such, it will
not be wrong for us to say that the allegiance of the Advocate general shall lie with the
Government, which itself is one of the polluters of the rivers. It is also reasonable for us
to say that the other two guardians also being Government appointees, shall be biased
towards the Government and its interests. The guardians of the rivers shall thus not act
independently, considering the fact that the Government’s interests in development and
resource exploitation, may conflict with the rights and interests of the rivers. In such a
scenario, several cases of pollution and degradation of the rivers will tend to go
unchallenged, for the Government’s activities will not be objected to by its appointees
themselves.

Article 21 of the Constitution of India has been expanded to include the right to a
wholesome environment, and the right to enjoy pollution-free water and air. To file a PIL,
violation of rights of a section of the public has to be alleged. The only relaxation, to the
rules of standing that is needed so as to allow the avenue of PILs to be utilised in order
for the implementation of the rights of nature theory is to allow only injury to the
environment to be alleged, instead of injury to the rights of citizens, as a consequence of
harm to the environment. Thus, NGOs, journalists, and other public-spirited individuals
will be able to file writ petitions on behalf of the rivers, to seek orders and directives that
enforce the rights of nature, if only the rules of standing in environmental PILs are
expanded slightly. Thus, the guardianship model as laid down by the Uttarakhand High
Court, seems to be unnecessary considering that, in India, PILs can be utilised to enforce
the rights of nature.

Thus, the appointment of representatives or guardians of the rivers, who are primarily
government employees, is in fact a step backwards since the Uttarakhand High Court
effectively held that the Advocate General would be the one to represent the Ganga and
Yamuna in all proceedings.
India already has very flexible rules regarding locus standi in environmental litigation
which can very simply be made to align with the rights of nature framework. There was
no need to appoint these guardians of the rivers whose jurisdiction beyond the
Uttarakhand as representatives of the rivers is also, in any case, questionable. While the
Government must be directed to act in furtherance of the welfare of the rivers, it cannot
be the sole representative or mouthpiece of the rivers, especially considering the fact that
guardianship of the rivers in India can easily be made to rest with individual citizens.

FALLACIES/ ERROR ASSOCIATED WITH THE GRANT OF PERSONHOOD

Criticism of the theory of attribution of personhood is the selfish nature of the same. We
argue that human beings have always attributed personhood to ‘things’ in a manner that
have suited their best interests. For instance, grant of personhood to deities and
corporations has taken place for the legal ease to humans in terms of seeking
representation from or looking after the property holdings by them. Personhood has only
been granted to these entities to suit the human needs of legal and financial organisations,
thereby making the entire process of attribution inherently selfish and arbitrary.

CONCLUSION

We have attempted to communicate the unsuitability between the legal theories of

personhood and the various examples of actual attribution of legal personality to objects
and entities. We have also delved into how the attribution of personhood is in itself
problematic, especially in the manner adopted by the Uttarakhand High Court. We feel
that such attribution of personhood to vanaspati will lead to the State government
shrugging off any responsibilities towards protection of the forests, and the forests will
also not find adequate redress, considering the fact that the guardians of the forests are
officials of the State, which is probably the biggest danger itself.

However, we do realise that the vanaspati, need to be protected against rampant pollution,
and hence, we have provided an alternative, duty-based approach for protection of rights
of the forest. We believe that the rights of natural entities should be dependent upon their
essential interests, which need to be protected through the imposition of duties. These
need to be merely recognised by the State, instead of the creation by the State of a legal
fiction, in order to grant such rights. These rights through personhood or otherwise
contribute little to the objective sought to be achieved. Therefore, they should be
recognised at a micro level, through a duty-based approach, fulfilling the purposes of
both, the interest theory and the rights of nature approach. With the incorporation of steps
similar one can hope for the conservation of the forests and the environment.
ARGUMENTS AGAINST

According to the facts stated in the proposition in Para 1, that it is a joint venture between
the state government of aryaland, corroborating with section 4 of forest conservation Act
1980, which states that the central government has the power to carry out the laws
prescribed under the same Act, that haven’t yet given forests standalone status of juristic
person.

If forests are given the status of juristic person then the contribution of forests to
development would be hampered. People in poverty often rely on forests will help lift
these people out of poverty. Forests contribute to the priority sectors such as water,
energy and health; there by giving forests standalone protection, this role would be
overlooked.

Granting legal status will open a floodgate of litigation where some people will be asking
courts to grant similar rights as vanaspati to the others forests, where as other people will
be charged with assault and murder for damaging the legal entity.

The forest Act, 1927 has given provision in section 26 which deals with prohibition of
certain acts in reserved forests, namely, setting fire, trespassing, pasturing cattle, causing
damage by negligence, felling any tree or cutting or dragging any timber, hunting,
shooting, fishing, poisoning of water, etc. Such kind of activities shall be punishable.

Chapter IX of the Act deals with penalties, section 64 empowers a forest officer or a
police officer to arrest without a warrant from a magistrate. The Act led to the adoption
by the government of the policy of reserving forests which deprived the tribal people of
their age old rights and privileges.

The forest conservation Act, 1980 as amended in 1988 places restrictions on the power of
the state government concerning preservation of forests or use of forests for non- forest
purposes. The preamble of the Act discloses that the Act provides for the conservation of
forests.